Rebel Aerial Agriculture Pty Ltd v Civil Aviation Safety Authority

1. [1]

   HIS HONOUR: By notice of motion filed on 9 December 2019, Rebel Aerial Agriculture Pty Ltd seeks an order that the Civil Aviation Safety Authority provide it with discovery in accordance with UCPR 21.2(1)(a) of the categories of documents described in a schedule to the motion. The motion is opposed.

2. [2]

   The categories of documents have been further limited by agreement since the motion was filed. Rebel now seeks discovery of only the following categories:

Background

1. [3]

   On 24 October 2013, David Black was conducting a firebombing mission in a modified PZL Mielec M18A Dromader Registration No. VH-TZJ when one of its wings separated and the plane crashed. Mr Black was killed. Although the facts and legal relationships between or among the several parties to this, and related, litigation are complex, Rebel relevantly contends that CASA had certain statutory functions with respect to the certification and enforcement of airworthiness directives concerning aircraft flying in Australia, including the aeroplane in question. In very general terms, Rebel contends that CASA failed properly to take precautions in the exercise and performance of its statutory powers and functions with the result that the aeroplane was permitted to fly when it was not airworthy. Rebel alleges that the accident was the result of CASA’s negligence.

2. [4]

   CASA denies that it was negligent or that it is liable in damages to Rebel.

3. [5]

   However, having regard to the way in which CASA has framed some of its objections to the current application, it becomes necessary to describe the nature of the dispute in some more detail.

4. [6]

   In early September 2000, the sixth defendant, Australian NDT Services Pty Ltd, applied to CASA for an approval of an Eddy Current Inspection (ECI) procedure in order to inspect for corrosion, pitting and cracks in the outboard lower attachment fittings of the aircraft. This application by Australian NDT was made in circumstances where:

5. [7]

   On 11 September 2000, CASA approved the ECI procedure contained in the procedure document proposed by Australian NDT.

6. [8]

   On 19 October 2000, a little over a month after approving the ECI procedure the subject of Australian NDT’s application, in performance of its statutory function, CASA issued airworthiness directive AD/PZL/5. Contrary to the approval given to Australian NDT on 11 September 2000, this airworthiness directive required operators to inspect the centre to outboard wing attachment fittings for PZL M18 aircraft in accordance with the service bulletin. That airworthiness directive became effective on 25 October 2000 and remained in effect at all times between then and the accident.

7. [9]

   Australian NDT and later Aviation NDT Services Pty Ltd, the fourth defendant, when conducting non-destructive testing on the aircraft, did so in accordance with a variation of the ECI procedure which was approved by CASA in September 2000.

8. [10]

   A further aspect of the case against CASA is that in March 2009, CASA approved an Australian supplemental type certificate (STC) SVA 521, requiring operators to record service life factors for the aircraft the subject of the STC. On 14 June 2011, CASA required operators of PZL M18 aircraft to inform CASA how hours of use of the aircraft were being factored by overweight operations.

9. [11]

   On 26 July 2013, CASA directed David Black as an operator of the aircraft to provide data collated accurately to factor time-in-service (TIS) under the STC maintenance manual.

10. [12]

    The first aspect of the case against CASA brought by Rebel is that CASA owed it a duty of care and that CASA breached that duty by:

11. [13]

    Rebel also alleges that CASA owed and breached a statutory duty to Rebel and that Rebel has a private right of action against CASA for that breach because of CASA’s:

12. [14]

    Rebel’s pleaded causes of action against CASA involve acts and omissions in the period from 11 September 2000 until the time of the accident.

The principles

1. [15]

   The Court has a general discretion to order discovery in a property damage matter, consistently with the applicable provisions of the Uniform Civil Procedure Rules and the Civil Procedure Act 2005. A class of documents must not be specified “in more general terms than the court considers to be justified in the circumstances”: UCPR 21.2(2). An order for discovery “may not be made in respect of a document unless the document is relevant to a fact in issue”: UCPR 21.2(4). Documents that are not directly relevant but which merely lead to a line of inquiry are excluded. In cases involving a common law claim for damages arising out of death or bodily injury, the Court does not have the same general discretion as applies in cases of property damage and an order in the former case may not be made in relation to any document unless the court, for special reasons, orders otherwise: UCPR 21.8.

The evidence

1. [16]

   Rebel read the affidavit of Mark Gray-Spencer sworn 9 December 2019. CASA relied on the affidavits of Nevin Rupert Agnew sworn 20 December 2019 and Gregory Williams sworn 20 December 2019. Mr Nevin is the solicitor on the record for CASA. Mr Williams is a solicitor in CASA’s legal branch. Part of Mr Williams’ evidence is as follows:

2. [17]

   None of the deponents of these affidavits was cross-examined.

3. [18]

   The parties have exchanged, and provided me with, helpful written submissions in relation to all of the categories that remain in dispute. Having regard to the manner in which they have approached the issues, it is convenient to deal with the evidence and submissions relating to each category in turn.

Category (a)

1. [19]

   Mr Williams’ evidence with respect to this category is as follows:

2. [20]

   CASA maintained that this category was “plainly in excess of what is reasonably required in the litigation”.

3. [21]

   Rebel says that there is no substance to CASA’s objections. The fact that there is currently no evidence served in support of the pleaded allegations is irrelevant to the question of whether the documents that are sought might be relevant to a fact in issue. Moreover, Rebel disputes the suggestion that the pleaded allegations are not maintainable. No application to strike out the pleadings has been made.

4. [22]

   In addition, Rebel notes CASA’s contention that it does not know the number of Dromader aircraft in operation in Australia over the relevant period on the one hand but says, inconsistently, that it would not be able to ascertain that number without considerable effort and resources on the other hand. Both positions cannot be correct.

Category (b)

1. [23]

   Mr Williams’ evidence with respect to this category is as follows:

2. [24]

   CASA maintained that this category “should be rejected as too wide and not reasonably related to an issue raised on the pleadings”. There is no temporal limitation, and no other restriction, on the nature of CASA’s consideration of the bulletin or the extension of the category to consideration by “or on behalf of” CASA.

3. [25]

   Rebel emphasised that the SAIB issued by the FAA dealt with a limited issue restricted to PZL M18 aircraft. There is no reason to think that there would be a vast number of documents that dealt with or gave consideration to that bulletin. Moreover, this category should not be reduced by reference to time as Rebel’s case against CASA involves acts and omissions spanning more than 13 years.

Category (c)

1. [26]

   Mr Williams’ evidence with respect to this category is as follows:

2. [27]

   CASA submitted that this category should be rejected for the same reasons as category (b). The breadth of the category is said to be neither reasonable nor supportable on the pleaded case.

3. [28]

   Rebel repeated its submissions in relation to category (b).

Category (d)

1. [29]

   Mr Williams’ evidence with respect to this category is as follows:

2. [30]

   In response to this category, CASA contended that there are no facts pleaded to suggest that there was any basis upon which it should undertake an ambulatory or ongoing consideration of the ECI procedure as allegedly approved on 11 September 2000 beyond the alleged “possibility” that the sixth defendant might not have been aware of its obligation, after 19 October 2000, to comply with the CASA AD up to the time when it ceased its business in “approximately 2006”.

3. [31]

   CASA submitted that this category should be appropriately confined both in time and contextually having regard to the pleadings to documents taken into account by CASA in its approval of the ECI procedure. CASA again maintained that this category is “disproportional to what is required for the conduct of this litigation”.

4. [32]

   Rebel in turn repeated its submissions in relation to category (b).

Category (e)

1. [33]

   Mr Williams’ evidence with respect to this category is as follows:

2. [34]

   CASA submitted that, if Mr Williams’ assessment of the need to expend 200 hours on finding documents in this category is accepted, it is oppressive. CASA otherwise raised no objection to this category.

Category (f)

1. [35]

   Mr Williams’ evidence with respect to this category is as follows:

2. [36]

   CASA maintained that this category is also disproportionate to what is required for the conduct of this litigation.

3. [37]

   Rebel repeated its submissions in relation to category (b).

Category (g)

1. [38]

   Mr Williams’ evidence with respect to this category is as follows:

2. [39]

   CASA submitted that this category has no relevant connection to an issue raised on the pleadings. CASA maintained that, contrary to Rebel’s submissions, the documents sought in this category are not limited “centrally” to the issue of “the circumstances in which CASA came to issue the (CASA aerial directive)”. The relevant issue is, on the contrary, said to be that which was raised in category (b). This category is also challenged as being oppressive and disproportionate.

3. [40]

   Rebel expressed surprise at CASA’s contention that the documents in this category did not appear to have any relevance to the issues in dispute. One of Rebel’s most significant points against CASA is said to involve the circumstances in which CASA came to issue the airworthiness directive on 19 October 2000, where just a little over five weeks beforehand it had approved a testing procedure that was inconsistent with that directive. Rebel maintains its view that the documents are central to the issue.

Category (l)

1. [41]

   Mr Williams’ evidence with respect to this category is as follows:

2. [42]

   CASA maintained that the relevant issue concerns its requirement that operators of PZL M18 aircraft provide information on the recording of time-in-service. CASA says that it has provided particulars of factual matters pertaining to this issue as “an element of its defence”. The category does not relate to anything raised in that defence. For example, CASA says that there is no pleading alleging that CASA required operators of PZL M18 aircraft to provide different or other information of the recording of time-in-service from that which it required from the operator of the aircraft in question here. The relevance of this category to an issue raised on the pleadings concerns, at most, CASA’s communications with the operator of that aeroplane or those who maintained it on 14 June 2011 concerning the matters raised in its defence.

3. [43]

   CASA suggests that there is “plainly a capacity to narrow [this] category in a way that is compliant with the applicable rules”. Otherwise it is submitted that the category is not reasonably proportional to what is required for the conduct of the litigation.

4. [44]

   Rebel acknowledged that this category is broad. However, the documents that are sought go to another important issue in the proceedings, namely the consideration given by CASA to the requirement that it imposed on 14 June 2011 for operators to inform it about factoring for overweight operations. Rebel contended that it would be difficult to narrow this category fairly to it.

Category (m)

1. [45]

   Mr Williams’ evidence with respect to this category is as follows:

2. [46]

   CASA submitted that the issue to which this category relates does not reasonably extend beyond communications between it and Rebel or between it and Mr Black and/or Rebel Ag Pty Ltd. It is not any part of Rebel’s case that an entity other than Rebel or Rebel Ag Pty Ltd operated the aeroplane in question at any time between 1 January 2013 and 24 October 2013. CASA does not object to discovery under this category if it is limited to recorded communications between CASA and Rebel and Mr Black and/or Rebel Ag Pty Ltd about the collation of the data referred to.

3. [47]

   Rebel repeated its submissions in relation to category (l).

Further submissions

1. [48]

   One of Rebel’s principal contentions is that, in seeking to constrain or limit the availability of discovery by reference to the pleadings, CASA has in fact not accurately identified the issues in dispute. Rebel maintained that the better approach is to have recourse to the pleaded allegations in the statement of claim, the vast majority of which CASA has put in dispute in its defence. In particular, CASA’s suggestion that the issue raised on the pleadings is whether “CASA conducted surveillance or audits of the fourth and sixth defendants in respect of specific maintenance required to be undertaken by them under the AD” is inaccurate. That accurately summarises only one of Rebel’s allegations about conducting regular surveillance or an audit of the fourth and sixth defendants: see paragraph 70(d) of the statement of claim. However, a further allegation is made at paragraph 74 of the statement of claim that CASA was under an obligation to conduct comprehensive aviation industry surveillance, including assessment of safety-related discussions taken by industry management at all levels. Rebel alleges at paragraph 75 of the statement of claim that CASA failed to comply with that obligation and particularises in paragraph 75(b), that in the period CASA knew or ought to have known that the use of the Eddy Current Inspection method for non-destructive testing of M18A Dromader aircraft was widespread. Rebel submitted that it cannot credibly be suggested that the issues in dispute with respect to CASA’s compliance with its obligations to conduct comprehensive aviation industry surveillance is limited to its surveillance or audits of the fourth and sixth defendants. Rebel contended that the failure by CASA to understand the nature of the case brought against it undermines a significant number of CASA’s objections to the categories of documents.

2. [49]

   Furthermore, Rebel submitted that CASA’s several complaints about oppression ought to be rejected. The evidence of oppression upon which CASA relies is found in Mr Williams’ affidavit. He does no more than identify what would be involved in locating and discovering the documents sought in the categories. That evidence of itself is no evidence of oppression at all, because Mr Williams does not identify either the extent to which CASA has already located those documents for the purposes of the coronial inquest or more importantly, the extent to which CASA will need to obtain the documents sought for the purposes of its own defence of the proceedings in any event. Indeed, Mr Williams does not identify the extent to which CASA has already procured the documents for the purposes of pleading its defence to the statement of claim or running the case. Rebel maintained that there is no credible evidence of oppression caused by discovery of the remaining categories.

Consideration

1. [50]

   In my opinion, many of the objections taken by CASA to the production of documents in the nominated categories proceed upon the argumentative basis, not that the categories do not relate to a fact in issue as determined by reference to the pleadings, but that CASA will ultimately be successful in defending the allegation or allegations that are made. Mr Williams’ evidence concerning the very first category, asserting that the category is based, in effect, on false premises, is an example of this. This category seems to me to be directly related to a fact that is or will be in issue in the proceedings, quite apart from whether or not Rebel or CASA succeeds in the final result.

2. [51]

   I consider that Rebel is entitled to require CASA to give discovery in the nominated categories, subject only to the following modifications or exceptions:

   1. (1)

      The use of the word “evidencing” in categories (a), (b), (c), (d) and (f) should be deleted and replaced with the words “recording or referring to”. The requirement that CASA should have to form a view about whether or not a document “evidences” something is potentially burdensome and onerous and should not be imposed.

   2. (2)

      The words “and any other operators” should be deleted from category (m). These words are potentially likely to expand the inquiry or search too widely and are potentially burdensome and onerous and should not be imposed.

3. [52]

   I am not persuaded that the present application is a fishing expedition or an attempt by Rebel to uncover a better or different case to the one that it has pleaded. I am in fact convinced that it is not. I was referred by CASA to Goulthorpe v State of New South Wales [2000] NSWSC 329 to which I have had particular regard in this context.

4. [53]

   Nor am I satisfied that the task of searching for the documents in question is so onerous that CASA should not for that reason alone be relieved from undertaking it. That submission would be stronger if CASA were able to satisfy me that the documents were likely to be of limited utility, in the sense that the issues, to the proof of which they are directed, were not seriously in question or could patently be established in other ways. I do not presently see that the documents sought by Rebel can be characterised or limited in this way.

5. [54]

   I am also not convinced that the efforts that will have to be made to find them are disproportionate to their significance. It is the nature of complex commercial litigation that documents abound. CASA undoubtedly has a sophisticated system of document storage and retrieval. Mr Williams does not suggest otherwise.

6. [55]

   I should however indicate that I am unable meaningfully to comment upon Mr Williams’ estimate that the entire task will take or entail “at least 1,500 work hours” at a cost “of some $240,000”. Mr Williams was not cross-examined and there is no other evidence against, or by, which I could gauge the accuracy or reliability of his predictions.

7. [56]

   Finally I note that there was a faint suggestion raised in the submissions made to me that Rebel may have been intending to have CASA discover the documents in order that they may be used for some collateral purpose. I did not perceive that issue to require a determination by me. If that perception is incorrect, no doubt it will be drawn to my attention.

8. [57]

   In the circumstances I propose to invite the parties to provide me with short minutes of order giving effect to these reasons. Unless otherwise notified, it seems to me that the orders should include an order that Rebel’s costs of this application are to be paid by CASA.